Opinion
CIVIL ACTION OO-0452-RV-L.
October 16, 2000.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed with prejudice, prior to service of process, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I. Complaint (Doc. 1) .
Plaintiff named as Defendants Richard Holcombe, Jr., a detective with the City of Prichard Police Department; Sammie Brown, Chief of Police; Mr. Terry Burt; Mrs. Hattie Burt; and Mrs. Patricia Boone. Plaintiff claims that during December, 1999, when he was incarcerated at the Metro County Jail, he received a check from Liberty National Life Insurance Company for $760.90, which exceeded the jail's rule of allowing only a $40 money order to be received at one time. Plaintiff alleges that he mailed the check to Terry and Hattie Burt's home where Mrs. Patricia Boone was staying with instructions to Mrs. Boone to deliver the check to Mrs. Betty Khan so Mrs. Khan could deposit the check in her account. Plaintiff asserts that Mrs. Boone forged the check in a conspiracy with the Burts so they could use the money themselves.
Plaintiff avers that he filed a criminal complaint in February, 2000, with the City of Prichard Police Department and that Detective Holcombe took the initial complaint, but has failed to arrest those responsible for stealing and forging Plaintiffs check. Plaintiff contends that he has written the department, Chief of Police Brown, and Detective Holcombe several times about his criminal complaint, but has not received a response.
For relief, Plaintiff wants to recover $760.90, with accrued interest, from the Burts and Boone and the same amount from Detective Holcombe, to be awarded punitive damages, and to have an order issued directing the Prichard Police Department to pursue this matter and the U.S. Attorney's Office to bring charges.
II. Standard of Review Under 28 U.S.C. § 1915(e)(2)(B)(i) .
Because Plaintiff is proceeding in forma pauperis, the Court has reviewed Plaintiffs complaint under 28 U.S.C. § 1915 (e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 183 1-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833.
The predecessor to this section was 28 U.S.C. § 1915 (d).
III. Discussion .
Plaintiff has named as Defendants Mr. Terry Burt, Mrs. Hattie Burt, and Mrs. Patricia Boone. Plaintiff does not indicate that these individuals act under color of state law. Rather, Plaintiffs allegations reflect that these Defendants are private citizens.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish: "(1) . . . the conduct complained of was committed by a person acting under color of state law; and (2) . . . this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986). To determine if a private party acts under color of state law, the United States Supreme Court uses three tests:
(1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. National Broadcasting Co., Inc. v. Communication Workers of America, AFL-CIO, 860 F.2d 1022, 1026 (11th Cir. 1988) (footnote omitted). The public function test limits state action to instances where private actors are performing functions "traditionally the exclusive prerogative of the state." NBC, 860 F.2d at 1026 (citations omitted). The state compulsion test limits state action to instances where the government "has coerced or at least significantly encouraged the action alleged to violate the Constitution." NBC, 860 F.2d at 1026 (citations omitted). The nexus/joint action test applies where "the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise." NBC, 860 F.2d at 1026-27 (citations omitted).Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir.), cert. denied, 510 U.S. 976, 114 S.Ct. 468, 126 L.Ed.2d 420 (1993).
There are no specific allegations that the Butts and Mrs. Boone acted under color of state law, nor do they appear to be typical state actors. Moreover, Plaintiffs allegations do not evince that the Butts and Mrs. Boone acted under color of state law because there are no allegations indicating that they performed a traditional state function, that they were coerced by the state, or that they were joint participants with the state in their business. Accordingly, the Court concludes that Plaintiffs claims against Defendants Mr. Terry Burt, Mrs. Hattie Burt, and Mrs. Patricia Boone are due to be dismissed as frivolous.
Plaintiff also named as Defendants Detective Holcombe and Chief Brown. Plaintiff claims that Defendant Holcombe did not pursue his criminal complaint. However, "[a] private citizen has no judicially cognizable interest in the prosecution or non- prosecution of another." Otero v. United States Attorney General, 832 F.2d 141, 141 (11th Cir. 1987) (affirming the dismissal of an action seeking the writ of mandamus to require the defendants to investigate and prosecute a former Florida State Attorney) (citing Linda R. S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973)). Moreover, it is a general rule that the courts are not free to interfere with the discretionary decision of whom to prosecute. United States v. Spence, 719 F.2d 358, 361 (11th Cir. 1983). Because there is no violation of a constitutional right, this claim is without legal merit and is due to be dismissed as frivolous.
Furthermore, Plaintiffs claim against Chief Brown and Detective Holcombe for not responding to his inquiries does not involve a violation of a constitutional right. Cf. Adams v. Rice, 40 F.3d 72, 75 (4th Cir.) (finding there is no constitutional right to a grievance system), cert. denied, 514 U.S. 1022, 115 S.Ct. 1371, 131 L.Ed.2d 227 (1995); Flick v. Alaba, 932 F.2d 728, 729 (8th Cir. 1991) (same). The failure to respond to an inquiry is not of constitutional magnitude and, therefore, this claim is frivolous.Parratt, 451 U.S. at 535, 101 S.Ct. at 1913 (there must be a violation of a constitutional right in order to sustain an action under § 1983).
IV. Conclusion .
Based upon the foregoing reasons, it is recommended that this action be dismissed with prejudice, prior to service of process, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The attached sheet contains important information regarding objections to the Report and Recommendation.